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Sunday, May 24, 2015

Did legal realism kill scholarship for judges?

"Judge Diane Wood of the [United States Court of Appeals for the] Seventh Circuit has published an essay in the Yale Law Journal that surveys citations to legal scholarship emerging from the Seventh Circuit. She argues that movements like Legal Realism and its descendants challenge the concept of 'judging' as a distinct activity from lawmaking, and as a result, scholarship that emerges from these traditions is not helpful to a sitting judge attempting to identify 'what the law is.' She further argues that within the academy, the effect is exacerbated by a norm that values theoretical scholarship over practical 'doctrinal' work, and hypothesizes that the type of doctrinal scholarship that judges are most likely to find useful is also more likely to be found in journals that carry less prestige."